Armitage & Sharpe

[2025] FedCFamC1F 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Armitage & Sharpe [2025] FedCFamC1F 121

File number(s):	ADC 3712 of 2024
Judgment of:	KARI J
Date of judgment:	17 February 2025
Catchwords:	FAMILY LAW – CHILDREN – Ex Tempore Reasons - Where the applicants seek leave to commence adoption proceedings pursuant to s 60G of the Family Law Act 1975 (Cth) – Where the respondent has not been personally served with the proceedings – Where the Court is satisfied that service has been effected – Leave to commence adoption proceedings granted
Division:	Division 1 First Instance
Number of paragraphs:	12
Date of hearing:	17 February 2025
Place:	Adelaide
Solicitor for the Applicants:	Mr De Ionno of Swan Family Lawyers
Solicitor for the Respondent:	No appearance

ORDERS

ADC 3712 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARMITAGE

First Applicant

MR ARMITAGE

Second Applicant

AND:

MR SHARPE

Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	17 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Pursuant to section 60G of the Family Law Act 1975 (Cth), leave be granted to the first and second applicants to commence adoption proceedings of the child X born in 2013 (“the child”).

2.The first and second applicants shall have parental responsibility for the child.

3.The child shall live with the first and second applicants.

4.The Applicant’s solicitors provide a copy of the orders made today together with a copy of the reasons when they are published to the address at B Street, City C SA (by way of substituted service for and on behalf of the respondent).

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Armitage & Sharpe has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

KARI J:

1. These proceedings come before the Court today in relation to the child, X, born in 2013 (“X”).  The orders that are sought in relation to X are that X's mother and the second applicant, the mother’s husband, be given leave to commence adoption proceedings to effect an adoption of X by, effectively, the second applicant in these proceedings.

   SERVICE 

2. The proceedings were commenced by the mother when she filed an Initiating Application for Final Orders on 5 August 2024.  Since that time, extensive attempts have been undertaken by the mother, through her legal representatives, to effect service of the proceedings on the respondent, who is X's biological father.  I have the benefit of a number of affidavits that have been filed in these proceedings and orders made by the Senior Judicial Registrar in relation to service.  I am conscious that there was an attempt at service at an address, namely D Street, City C; however, that was not an address at which the respondent, at that time, resided.  I have had regard to the affidavit of service of 11 October 2024 in that regard.

3. There was a further attempt at service on 23 October 2024, this time, at an address known as B Street, City C, as outlined in the affidavit of service dated 4 November 2024.  When attending at this address, the process server asked the occupant of the home whether the respondent lived at the home.  The occupant of the home indicated that he did, but that he was “away for a few days”.  The process server then asked if the documents could be given to the respondent when he was back.  The occupant of the home said, "Yes, I will" and the process server then asked for the name of the occupant of the home.  The name given on that occasion was the name: "[Ms E]".  I am conscious, from other material filed in these proceedings, that Ms E is the mother of the respondent and, as a consequence the paternal grandmother of the child.  I am satisfied (particularly in light of the further attempts I shall discuss) that service that day, while not personal service by hand upon the respondent, should be considered service of the documents on the respondent in these proceedings. 

4. Be that as it may and as a result of further directions made by the registrar, further attempts were made at service on the respondent.

5. I do not propose to detail all of those attempts, other than to say that I have had regard to each and every attempt that has been made to locate the respondent, including searches of the electoral roll and other attempts to locate an address for him.  I do, however, have regard to the most recent affidavit filed on behalf of the applicants regarding service on 10 January 2025.  On that occasion, I understand that attempts were made to serve the respondent with the order made by Judicial Registrar Farantouris on 18 December 2024 and, indeed, attempts were made to do so by post and a text message was sent to the respondent, indicating that documents had been sent to him at B Street, City C. 

6. Of significance, the order of 18 December 2024 indicated that the matter had been listed for hearing before me today at 12 noon for consideration and further directions.  In addition, orders were made, permitting service of the proceedings both by post and for a text message to be sent.

7. I am satisfied that there has been compliance with the orders made by the judicial registrar on 18 December 2024 when regard is had to the affidavit of service filed on 10 January 2025.  In all of those circumstances, I am satisfied that the respondent:

   (a)is on notice of these proceedings;

   (b)is on notice of today's hearing; and

   (c)has been given every opportunity to be heard in relation to the application before the Court. 

8. I can only infer, by his non-attendance and his decision not to file any documents in relation to the application, that he does not wish to be heard in relation to the application before the Court.

   THE APPLICATION

9. I now turn to the Application for Final Orders that has been made.  As I indicated earlier, the application is one in which leave is sought for both applicants to commence adoption proceedings in relation to X.  Again, I have had the benefit of a range of material that has been filed in these proceedings.  I am conscious, effectively, that the respondent has had nothing to do with X since a short time after his birth and certainly, within the first 12 months of his life.

10. The first applicant mother has re-partnered, and she has been in a settled relationship with her partner, the second applicant, for some significant time now.  I am also conscious that an intervention order was made in 2015 naming the mother and X as protected persons and the respondent biological father as a defendant.  The intervention order does not have an end date and is a permanent intervention order, protecting both the mother and X from the biological father.  It is a broad and extensive intervention order that has been made.  I do not propose to set out in these reasons the detail as to why it is that the intervention order was obtained nor why it is that the mother now proposes that she and her partner be given leave to commence adoption proceedings.  I have had regard to all of the material that has been filed in that regard, together with the report prepared by Ms F and dated 20 September 2024. 

11. I am satisfied that when having regard to that material and particularly, in circumstances where X is the one agitating for adoption proceedings to be commenced to regularise the parenting arrangements under which he has lived his entire life and certainly, the one that he can remember.  I am satisfied that it is appropriate and, indeed, that it is in X's best interests that orders be made as proposed by both applicants in these proceedings. 

12. I accordingly now make orders in terms of paragraphs 2, 3 and 4 of the final orders sought.

    NOTE:

    These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated:       28 February 2025